The plaintiff worked as a groundskeeper.? ?His employer refused to interview him for a promotion because he had a genetic eye condition that prevented? ?him? ?from? ?obtaining?? a? ?commercial drivers? license (?CDL?) which was necessary to drive certain equipment.?? Federal law requires a CDL to drive vehicles over 26,000 lbs.? ?The employer failed to comply with federal law for a number of years. ?The union and the employer then agreed that certain positions would require a CDL. Those positions? job descriptions were modified to list obtaining a CDL within 6 months as a requirement.?? The employer and the union agreed to ?grandfather? certain employees with medically disabling?? conditions? ?into? ?positions? ?that? ?now required a CDL.

The employer refused to consider the plaintiff for promotion to a position that now required a CDL, because they knew he could never obtain one. ?The person hired for the position didn?t have a CDL, and did not obtain one in six months, or in 12 months.?? ?The employer then demoted the successful applicant and reopened the position. The plaintiff applied again, requesting a waiver of the CDL requirement. ?The employer refused.

The plaintiff sued for refusing to accommodate his disability.?? He introduced evidence that the equipment requiring a CDL was used less than 12 days per year and that another vehicle for which ?a ?CDL? was ?not ?necessary ?would ?have been? just? as? effective.?? ?The jury found? in? the employee?s favor and awarded $7,500 in wages and no emotional distress.?? The Superior Court granted the employee?s motion for a $50,000 emotional distress additur.

On appeal, the court of appeals recognized that federal law recognizes a BFOQ defense when an employee has proved the employer has relied on a facially discriminatory qualification. ?The court of appeals also recognized that federal law requires the employer to prove a business necessity defense where an employer relies on a facially neutral criterion that has a disparate impact.?? The court recognized that the business necessity defense would apply to a claim under the ADA where the standard at issue screens out an applicant.

The court ruled, however, that the plaintiff here failed to make a claim for either disparate treatment or disparate impact discrimination. Because the only claim the plaintiff raised was failure to accommodate, the only issue was whether waiver of the CDL requirement was reasonable.?? If it was not, then the plaintiff was not qualified for the position he desired.?? The court then ruled that being able to drive the vehicles that required the CDL was an essential function of the position.

The problem with the court?s analysis is that the function of the job of groundskeeper was to keep the grounds clear of snow, not drive particular vehicles.???? The ?ability? to ?drive ?the ?specific vehicles was a qualification standard. ?The court relied on Davis v. Microsoft, 149 Wn.2d 521, 70 P.3d 126 (2003) and Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th ?Cir. 2012).???? Both ?of ?those ?cases ?also ?mistakenly consider qualification standards under the rubric of ?essential functions.?

Fey v. State of Washington Community Colleges of?Spokane, — Wn. App. —, 300 P.3d 435 (Div. III 4/18/13) (Sidoway, Korsmo, Kulik).